By DAVID SKOLNICK

Staff writer

YOUNGSTOWN — An attorney for Youngstown argued the city should not be required to pay a $739,500 penalty to the federal government for delays to its major wastewater improvement project.

Terrence S. Finn, hired by the city in this federal case, wrote: “In demanding these penalties, the United States ignores the undisputed fact that the delay in completing the WWTP (wastewater treatment plant) improvements was caused by factors that were beyond Youngstown’s control and that there was a legitimate reason for the delayed compliance with the design deadlines for the Mill Creek Park sewer project.”

He added in a court brief filed late Thursday: “More importantly, the delays did not result in any harm to the environment. In fact, for each project, Youngstown implemented mitigating measures that resulted — and will continue to result — in significantly less pollution than would have occurred had Youngstown complied with the deadlines and requirements of the consent decree that are subject to the United States’ pending motion. In essence, the United States is asking this court to impose penalties against Youngstown for conduct that has resulted in the reduction of millions of gallons of pollution.”

Federal attorneys filed a motion Friday asking to have until Aug. 7 to reply. The federal government was supposed to file by July 31.

The federal attorneys said legal counsel for the city and state of Ohio does not object to the extension and it is needed “to provide sufficient time for U.S. Department of Justice Environmental and Natural Resources Division management review of the reply prior to filing.”

Filing the motion on behalf of the federal government was Pedro Segura, a trial attorney with the DOJ’s Environmental Enforcement Section, and Elizabeth Berry, an assistant U.S. attorney.

The penalty remains the only part of the federal court case that remains unresolved.

Segura first brought up the penalty in a Sept. 29, 2023, letter to the city. Segura wrote that the city should pay $1,479,000 — with half going to the federal Environmental Protection Agency and the other half to Ohio’s EPA — because the city “defaulted” on following through with federally mandated wastewater treatment plant improvements on a timely basis.

The state EPA declined to seek the penalty and has largely sided with Youngstown during the court proceedings.

In his Thursday filing, Finn argued the federal government miscalculated the “alleged penalties” by improperly adding $294,000 to the total.

‘PROPOSED RESOLUTION’

The sides “successfully finalized a proposed resolution,” according to a June 20 court filing by all the parties, to the ongoing dispute that permits the city to reduce a phase of the wastewater improvement project.

The federal government wants to make the resolution official by Aug. 26 to “provide sufficient time for the United States to consider any public comment on the proposed consent decree amendment and advise the court and other parties as to the United States’ final position.”

Public comments on the proposed resolution ended July 14.

In addition to the penalty, the heart of the case is over the federal government wanting the city to build a 100-million-gallon-per-day wet weather facility. That structure would treat excess combined sewage during heavy rainstorms and then release the water.

The city argued the structure was too large and expensive. It suggested an 80-million-gallon-per-day facility.

While the federal government had previously rejected a reduction in the scope of the work, Charles Shasho, the city’s deputy director of public works, told The Vindicator on May 30 that the federal government had agreed to the city’s request to build the facility to handle 80 million gallons a day.

A June 6 court filing by the federal government confirmed that with the city also agreeing to “cloth-disk filter media technology for high-rate treatment of wet weather flows.” The filter removes solids from water.

The city of Youngstown and the state of Ohio approved the modifications to the project, according to an April 22 status report with the court that didn’t disclose details.

In the June 6 court filing, the federal government agreed to reduce the size of the wet weather facility to handle 80 million gallons a day because the city is diverting 35.5 million gallons of combined sewage annually into the Mahoning River in an ongoing project, costing $10.5 million, as well as an earlier deadline on the wet weather facility and a compressed schedule on an interceptor sewer project to keep wastewater from 13 lines from flowing into Mill Creek Park’s Lake Glacier and Lake Cohasset.

The city agreed months ago to the earlier deadline and compressed schedule.

Judge Christopher A. Boyko of the U.S. District Court’s Northern District of Ohio, who is overseeing the case, on June 23 ruled the city’s motion to modify a 2014 consent decree to reduce the size of the wet weather facility is moot because of the agreement with the federal government.

The city reopened a federal consent decree on its wastewater improvements on March 15, 2024, objecting to the size of the wet weather facility.

The project’s initial estimate was $62 million, but at that size, would be more than $240 million, according to a Nov. 12 amended motion to modify the consent decree.

The city hasn’t determined the cost of a smaller facility.

The federal EPA had originally ordered the city in 2002 to do $310 million worth of work, but it was negotiated down to $160 million in 2014 with the expectation it would be finished in 20 years.

The city plans to have all of the work done by Oct. 1, 2035.

Also, the city insists in court filings and interviews that if Youngstown complied with the mandates now the cost would be about $380 million to $400 million – well over twice what it agreed to do 11 years ago.

DELAYS

The first phase upgraded the city’s wastewater treatment plant and was completed Feb. 3, 2021.

The initial construction estimate was $37.3 million, but the city said it cost $70 million.

That work helped reduce the sewer overflows that would be part of the wet weather facility project, the city’s court filing states.

It is the delays in these upgrades that led the federal government to seek the $739,500 penalty.

Finn wrote in Thursday’s filing: “Youngstown had to deal with the unforeseen need to relocate a gas utility line, a problem that was not discovered until after the start of construction. In addition, the primary settling tank improvements were delayed because of a significant, unforeseen problem encountered after the first four tanks were installed. To fix this unforeseen problem, Youngstown had to perform significant additional work.”

Finn wrote there were construction and equipment delays because of the COVID-19 pandemic and despite the issues, the work was finished “less than 11 months” after the deadline.

The treatment plant upgrades allow it to handle 100 million gallons per day of wastewater overflow, up from the 80 million gallons a day it used to handle before the work was done, according to a written statement from Shasho included in Thursday’s court filing.

From Feb. 3, 2021, until this June 30, there were 16 times when the average flow rate was greater than 80 million gallons per day with the city treating about 63.93 million gallons that it wouldn’t have been able to handle before the expansion to 100 million gallons, Shasho wrote.

Between March 27, 2020, when the project was supposed to be finished, and Feb. 3, 2021, when it was done, there was one event when the wastewater exceeded 80 million gallons and the city “fully treated this additional flow in compliance with the effluent limits in the permit without a plant bypass,” Shasho wrote.

The wet weather facility was supposed to be phase two of the work, but the city bypassed it as it successfully argued for a reduction in size.

The city is working on an interceptor sewer project to keep wastewater from 13 lines from flowing into two Mill Creek lakes. That was supposed to be the project’s third phase.

City council on Monday is being asked to authorize the board of control to enter into an agreement for up to $43 million with Marucci & Gaffney Excavating Inc. of Youngstown to handle the first two of four parts of this phase.

The $43 million is an engineer’s estimate and the price negotiated between the company and the city, Shasho said.

“If we want to reduce things then we’ll lower it,” he said. “If we need to add work to it, we’d review it and go back to council for an increase.”

A guaranteed price is due by the end of August, Shasho said.

The work would begin at the start of 2026, he said.

Design work was supposed to start July 11, 2020, and construction was to begin April 5, 2024.

The city missed those deadlines, but plans a compressed schedule.

Attached to Finn’s Thursday court filing is a schedule that has the first two parts finished by May 29, 2028. The third part would be done by April 18, 2031, and the final part by Sept. 29, 2032.

The first two parts would be done 29 months and five months later than initially planned while the third part would be done nine months earlier than scheduled and the fourth done 15 months earlier, according to the city court filing.

That phase was estimated to cost $47.7 million and will now cost more than $72 million, according to Finn’s Thursday court filing.

The city hired MS Consultants of Youngstown last year for $4.8 million to design the interceptor. That work is finished — which designed about 90% of the project — with Marucci & Gaffney finishing the design and then doing the project’s first two parts.